Lasting Powers of Attorney & Deputyships Office of the Public Guardian Presented by Andrew Parker

Lasting Powers of Attorney & Deputyships

Office of the Public Guardian

Presented by Andrew Parker

www.direct.gov.uk/mentalcapacity

This presentation will cover:

• Brief introduction to the Mental Capacity Act and best interest

decision making.

• Planning Ahead: The role of the Office of the Public Guardian • What an LPA covers• Attorneys

• If you do not/cannot plan ahead: The role of the Court of

Protection : • Deputyship.


The Mental Capacity Act (MCA) 2005

• Came into force on 1 October 2007.

• Provides structure and clarity to decision-making for people who lack capacity.

• Sets out in law what should happen in situations when a person is unable to make such decisions.

• Ensures that those who lack capacity are empowered to make decisions for themselves where possible.

• Any decision made, or action taken must be in the best interests of the person concerned.

• Has a Code of Practice that amplifies and clarifies the legislation.

• Established the Court of Protection & Office of the Public Guardian


The Mental Capacity Act

• Assume a person has capacity unless proven otherwise.

• Do not treat people as unable to make a decision unless you have tried all practicable steps to help them.

• Do not treat someone as incapable of making a decision just because their decisions are unwise.

• Any act done or decision made for or on behalf of someone without capacity should be done or made in their best interests.

• Before doing something for someone or making a decision on their behalf, consider whether you could achieve the same outcome in a less restrictive way.

The legislation for LPAs is set out in the Mental Capacity Act, which came into force on 1/10/2007. The 5 key principle of the MCA are as follows:


Office of the Public Guardian : Our Mission

•To improve awareness and knowledge of the OPG and the services it provides in order to facilitate preparation for a possible future lack of mental capacity.

•To continue to improve the service provided to Deputies and Attorneys, and those applying for such roles, in order that decisions concerning people who lack capacity are made optimally and quickly.

•To engage effectively with a range of supporting organisations in order to improve the effectiveness of the Mental Capacity Act 2005 and engagement with the OPG.


The Role of the Public Guardian (PG)The Role of the Public Guardian (PG)

• Registers Lasting Powers of Attorney (LPA):

1) Property & Affairs or, 2) Health & Welfare

Must be registered before use

• Registers Enduring Powers of Attorney (EPA):

Pre-MCA financial affairs instruments

Registered when donor losing capacity

• Supervising & supporting Deputies appointed by the Court

• Practice & Compliance

Investigates claims of abuse

Safeguarding through Court application & sign posting

Publishes guidance and Practice Notes

• Raising awareness of the MCA

Building and maintaining effective relationships with stakeholders


Planning ahead after implementation of the Act: LPA

• LPAs and EPAs allow someone to plan in advance for future loss of mental capacity.

• EPAs were the pre-Mental Capacity Act mechanism by which someone (the Donor) legally handed over the management of their financial affairs and property to someone else – there was no provision for health and welfare EPAs

• EPAs made before 1 October 2007 can still be used and must be registered with the OPG when someone can no longer manage their affairs.

• LPAs replaced EPAs from 1 October 2007 and introduced greater safeguards.

• An LPA can be made for property and financial affairs and health and welfare decisions.


LPA application process

• The LPA forms are designed so they can be completed with ease yourself. A solicitor or advisor is not necessary, but taking advice may be valuable if your plans and/or circumstances are not straightforward.

• There are three key steps to the LPA process:

choosing your attorneys and other people you need to be involved

completing the LPA form

registering the LPA.

• The LPA form has three parts:

Part A - the donor completes providing details of the attorneys, people to be told.

Part B - the certificate provider fills in detailing how they know you and their professional skills.

Part C - attorneys fill in and sign to state they understand their responsibilities.


LPA002- Application to register a Lasting Power of Attorney

•The form duplicates information from the LPA to validate the instrument

•It also allows the applicant to update personal details such as address

•A separate LPA002 should be completed if both P&A, and H&W are being submitted


• The LPA002 should be submitted as soon as possible after posting the LPA001.

•The reverse of the form explains the process of objecting

•If the person to be notified has died, there is no need to complete the form.

•All effort should be made to contact the named person if address is believed to have changed.

LPA001- Notice of intention to apply for registration of a Lasting Power of Attorney.


Someone can chose to apply for one or both LPAs, but that majority of applications are for property and finance.

There are two

types of LPA

that can be

made:

Health & Welfare Property & Finance


Property & Financial Affairs LPA - Front page


LPA – Property & Affairs

An Attorney can make any decisions the Donor would make in respect of finances and property.

Attorneys will generally:

• Pay regular bills

• Manage income and expenditure

• Buy or sell property

• Manage investments and even carry on a business

This type of LPA can be used where Donor retains the capacity to make the required decision but wishes to have the Attorney(s) act for them.


LPA – Health & Welfare

Attorney(s) for Health and Welfare may make decisions that the Donor would normally make about their personal welfare:

Where the Donor lives

Accessing the Donor’s medical records

Deciding what the Donor will wear or eat

This type of LPA can only be used where the Donor lacks the capacity to make the required decision.


Life Sustaining Treatment (LST) Page

Donor must execute the LST page correctly in order for attorney to have LST power

Invalid LST page does not necessarily invalidate the whole instrument

Strict order of signing applies


Named persons

Attorney's) cannot be a named person

Must be at least one independent person

If not there must be two certificate providers

Severance


Donor “execution”

Signatures

Witness

Dates


Certificate Provider Part B

Cannot be related to donor or attorney

Cannot be a partner or employee of the donor or attorney

Be owner, director, manager or employee of a home where the donor resides.

Look and see what the CP is signing up to

Knowledge of the donor

Professional skills


Attorney Part C

Name of attorney on Part C required unless we can identify attorney name from signature.

Strict order of signing

Date gap between B and C not greater than one year

HW and P&FA Part Cs are not interchangeable.


(LPA) Objections made to the OPG

Factual Grounds

• The Donor or Attorney is bankrupt or interim bankrupt (for property and affairs LPAs only)

• The Attorney is a trust corporation and is wound up or dissolved (for property and affairs LPAs only)

• The Donor or Attorney is dead.

• There has been a dissolution or annulment of a marriage or civil partnership between the Donor and Attorney (where they are spouses) except if the LPA provided that such an event should not affect the instrument.

• The Attorney(s) lack the capacity to be an attorney under the LPA.

• The Attorney(s) have disclaimed their appointment.


(LPA) Objections to the Court of Protection

Prescribed Grounds

• That the power purported to be created by the instrument is not valid as a LPA. e.g. the person objecting does not believe the donor had capacity to make an LPA.

• That the power created by the instrument no longer exists e.g. the donor revoked it at a time when he/she had capacity to do so.

• That fraud or undue pressure was used to induce the donor to make the power.

• The attorney proposes to behave in a way that would contravene his authority or would not be in the donor’s best

interests.


Fees, Exemptions and Remissions

• There is no cost to make an LPA unless you decide to use a

solicitor or other professional.

• The fee for the registration of an LPA is £130.

• The person registering is responsible for paying any fees.

• You may be exempt from paying the fee if you are in receipt of

certain benefits.

If you are not eligible for exemption and your gross annual income* is

less than £12,000, you may be eligible for a 50% reduction of the fee.

* Gross annual income may come from employment, non-means-tested benefits (such

as Attendance Allowance and Disability Living Allowance), pensions and interest from

capital investments.


Who is a Deputy?

A deputy is someone appointed by the Court of Protection to make decisions for someone who is unable to do so on their own as they lack capacity.

Who can become a Deputy?

A deputy is usually a close friend or family member of the person who needs help making decisions. A deputy can also be a professional, such as an accountant or a solicitor. Any deputy must be over the age of 18.The Court of Protection will decide who can be a deputy

The responsibilities of a Deputy

The decisions a deputy makes can have a big impact on the other person’s life. A deputy should:

• only make decisions in the person’s best interests

• only make the decisions the court says a deputy can make

• apply a high standard of care when making decisions


What happens after the Court makes an Order?

• The person that lacks capacity must be informed of the order

• The deputy must lodge an insurance bond to protect P’s monies

• The Public Guardian will supervise the deputy on an annual basis.


How is a Deputy supervised by the OPG?

The OPG has a responsibility to check that a Deputy is doing everything they should be doing. This involves making sure:

• That the a deputy complies with the terms of the Court order

• That decisions are made in accordance with the MCA and the Code of Practice

• That a deputy is acting in the client’s best interests

This called Supervision. The OPG has four different levels of Supervision depending on how much support they think a deputy will need.


Supervision fees

The annual supervision fees are:

• £320 per annum for Types 1, 2A and 2 supervision

• £35 per annum for Type 3 supervision

Where client’s have adequate funds they are required to pay for

the cost of supervision. However, the client may be eligible for

fee exemption or remission if fees would cause hardship.


Court/OPG costs

The comparative cost for making an LPA and applying to the Court are:

LPA Court Order

Costs£130 H&W LPA£130 P&F LPA

£400 Application Fee£400 Appeal Fee£500 Hearing Fee£100 Deputy assessment fee £320 Annual supervision fee

Timeframes 11 Weeks Up to 25 Weeks

Reporting Not requiredAnnual report form to be submitted

Decision making

Choose your own attorneys and restrictions

Court appointed deputy and restrictions


Further reading

www.dca.gov.uk/legal-policy/mental-capacity

Contact us

Office of the Public Guardian

PO Box 16185BirminghamB2 2WH

T: 0300 456 0300 - Mon - Fri from 9am - 5pm (Except Wed 10am - 5pm)

F: 0870 739 5780

E: customer [email protected]


Lasting Powers of Attorney & Deputyships Office of the Public Guardian Presented by Andrew Parker

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Transcript of Lasting Powers of Attorney & Deputyships Office of the Public Guardian Presented by Andrew Parker